Moore gives large developers a pass on parking lot rule

Anson Tebbetts, secretary of the Agency of Agriculture for Gov. Phil Scott.

File photo by Erin Mansfield/VTDigger

Agency of Natural Resources Secretary Julie Moore.

File photo by Mike Faher/VTDigger

Lake Carmi has been closed for three months this year because of toxic algae blooms caused by pollution from local dairy farms. New pollution limits are aimed at keeping Lake Memphremagog from meeting the same fate.

Photo by Mike Polhamus/VTDigger

Posted
Friday, January 5, 2018 2:33 pm

By Mike Polhamus, VTDigger.org

Julie Moore, the Agency of Natural Resources secretary, told lawmakers Wednesday that she missed a Jan. 1 deadline for new rules that would require developers to build stormwater systems for 3-acre parking lots.

The secretary asked the House Committee on Natural Resources, Fish and Wildlife for a one-year extension on stormwater enforcement rules for the parking lots. The Jan. 1, 2018, deadline was set in 2015. Moore said she needs another year to ensure the rules are "cost-effective."

Environmental advocates say Moore is on track to blow another water-quality deadline that arrives in just over a week.

Moore also recently drew criticism for refusing to comply with a 2017 statute requiring that the administration submit recommendations for long-term funding for water quality to lawmakers.

Another member of Gov. Phil Scott's administration recently missed a water-pollution deadline, when Agency of Agriculture Secretary Anson Tebbetts refused to tell lawmakers whether farms' exemption from the state's development laws contributes to Vermont's water pollution.

Lawmakers in November gave Tebbetts a month to figure out whether farms' exemption from Vermont's land-use law contributes to Vermont farms being the single greatest source of water-borne phosphorus — the pollutant that has nourished toxic bacterial blooms in Lake Carmi, Lake Champlain, Lake Memphremagog and other Vermont public waters. Last month, Tebbetts said neither he nor his staff had done the research that would answer that question.

Critics worry that these failures represent a pattern.

Moore and the Agency of Natural Resources were until recently expected to meet the Jan. 1, 2018, deadline for the parking lot rule, which requires large developers to control pollution caused by stormwater runoff from their parking lots of at least three acres or more. Rebekah Weber, of Conservation Law Foundation, said a draft of the rule was written, but Moore at the last minute changed course, missed the deadline and asked for an extension.

"Until two months ago, all the trains were running on time," Weber said. "Then, at the end of October, there was radio silence."

It is unclear why Moore is seeking the extension, environmental advocates say. Business groups representing large developers have opposed the rule because of potential costs to landowners.

Ashley Romeo-Boles, government affairs specialist at the Vermont Chamber of Commerce, said she has concerns about the rule's potential costs to landowners.

The chamber supports Moore's request for an extension, Romeo-Boles said.

Romeo-Boles said lawmakers should ensure that the rule is "fair" and cost-effective for developers.

As proposed, the rule could require developers to spend up to $50,000 for each acre of parking lot to install retrofits that would curb water pollution. A fairer approach would be to distribute the costs between municipalities where the parking lots are located and the state, Romeo-Boles said.

Instead of targeting individual polluters, the state should direct municipalities and residents to upgrade local water treatment plants, Romeo-Boles said. The state should also directly subsidize developers who are forced to reduce water pollution from their parking lots, she said.

This approach, Romeo-Boles said, would "spread out the costs associated" with water pollution, and benefit from economies of scale, while "acknowledging everyone's a contributor to the pollution of our waters and everyone can work together towards improving our clean water, so we shouldn't be focused just on the sub-groups such as every property with three acres or more (of paved surface), but we should be thinking about this holistically, and the fact that we should be trying to achieve the greatest pollution reduction while also trying to maintain some sort of cost-effectiveness."

Moore, too, said she sought the year-long deadline extension in order to realize greater cost-effectiveness.

But when committee member Rep. Paul Lefebvre, R-Newark, asked Moore why she missed the Jan. 1 deadline, Moore did not allude to her intentions to cut costs. Instead she made the following remarks:

"The only date we're proposing to change, is in reality the change from January 1, 2018 to January 1, 2019 — that's a reflection of the fact that we're here today to ask for these changes," Moore said. "I guess I — to build on what (legislative attorney) Mike {O'Grady) said about it being effective on passage — our strong hope would be, if the committee's willing to entertain this proposal, that they would act on it quickly, as soon as it passes we can get back to finishing up the stormwater rule and get it out for the public comment period. We know that that will take probably about six months, but have been provided a year in the way this is drafted to get that work done. But we need to do a public process surrounding that rule as we would any rule."

The bill proposed by the Scott administration would also grant Moore what she described as greater "flexibility" in applying the rules. Because the rules are already overdue, the extension, if granted, would take effect "on passage," meaning immediately.

Jon Groveman, a policy director for the Vermont Natural Resources Council, says the details of the three-acre rule were hashed out already through an extensive public process, and shouldn't be amended by fiat.

Vermont's Clean Water Act, also known as Act 64, Groveman said, was adopted in 2015 with a generous timetable for compliance. Most of the rules Moore was supposed to have completed by Jan. 1 wouldn't require businesses to actually comply for another five years, he said. Other businesses affected by the rule won't need to comply until 2028.

The businesses affected by the rule — that have three acres of pavement, buildings or other impervious surfaces — are large companies, Groveman said. Runoff from large developments is among the top sources of water pollution in the state, he said. Controlling the pollution from these large developments is a cornerstone of Vermont's Clean Water Act, he said.

Moore told lawmakers most of the developments in question are large, abandoned industrial sites located around the state.

"It's a lot of old, industrial buildings," Moore said. "If you go through the list of older industrial communities, that's where you'll find them, in addition to schools and hospitals."

Moore's request for a deadline extension includes other provisions that are likely to weaken the effectiveness of the law, such as an option for Moore or her successors to exempt large swaths of Vermont developers from the rule, according to Lauren Hierl, political director for Vermont Conservation Voters.

Other deadlines connected to the rule could also be pushed back, Hierl said. For example, implementation of new stormwater rules in the Lake Champlain watershed are supposed to go into effect in 2023. That deadline could go by the boards because of the Scott administration's failure to advance the rulemaking process.

"We heard Secretary Moore refer to the fact that they want the ability to allow less pollution reduction because it will cost developers less," Hierl said. If that's the motivation for the extension request, Hierl said Moore should simply say so and the public should have the opportunity to respond to the policy change.

Environmentalists are most concerned about the administration's pattern of failing to carry out legally required actions, Hierl said.

Granted, Act 64 does require "a slew of rulemaking," Hierl said. It's hard to tell whether the agency doesn't have enough staff to complete the volume of work or if the Scott administration simply doesn't want to enforce water quality laws.

Weber expressed worry over the same pattern of behavior.

"It's concerning that we're starting to see a pattern of chipping away at our commitments to clean water," Weber told lawmakers.

"It starts with a missed deadline, but there are other missed deadlines that are taking place across various agencies that have to do with clean water," Weber said. "Whether it's the fact that this permit was supposed to come out January 1; there's a tile drain rule that's supposed to come out January 15 — that will be missed; it's wanting flexibility so that this (rule) won't be as strong as it should be; it's enforcement bills that're cropping up, wanting to keep (farmers pollution-control plans) secret: there's a pattern here, I'm trying to show."

David Deen, D-Westminster, chair of the House Natural Resources Committee, said the panel will soon decide on Moore's request for the one-year delay. Further hearings on the subject are scheduled early next week.

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